NFA Releases Interpretive Notice Regarding Use of Marketing Materials for Swap Dealers

​The United States National Futures Association (NFA), a self-regulatory organization for the U.S. derivatives industry, announced that it has recently adopted an Interpretive Notice, providing  guidance to swap dealer (SD) Members regarding their regulatory obligations related to their use of marketing materials.

Entitled NFA Compliance Rule 2-9(d) Swap Dealer and Major Swap Participant Supervision of the Use of Marketing Materials, the Interpretive Notice will become effective on May 31, 2021.

The Interpretive Notice is based on supervisory principles that are tailored to reflect that SD Members conduct business exclusively with counterparties that qualify as eligible contract participants and negotiate bilateral, bespoke swaps tailored to a counterparty's specific needs.

In order to discharge their supervisory obligations, SD Members are required to adopt a supervisory program that is designed to reasonably ensure that marketing materials comply with all applicable NFA and CFTC requirements.

While SDs have flexibility in designing their programs, the Interpretive Notice requires that an adequate supervisory program include policies and procedures related to:

• ​Review and approval of marketing materials;

• ​Training; and

• Recordkeeping.

NFA's Swap Participant Advisory Committee supported this Interpretive Notice, which was unanimously approved by the Board.